United States v. Morgan
| Decision Date | 11 December 2012 |
| Docket Number | 8:12CR281 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SHAWN K. MORGAN, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court on defendant's objection, Filing No. 30, to the findings and recommendation of the magistrate judge ("F&R"), Filing No. 29, on defendant's motion to suppress, Filing No. 18. The magistrate judge recommends that this court grant the defendant's motion to suppress the defendant's pre-Miranda statements, but deny the defendant's motion to suppress his post-Miranda statements and the evidence found in the search of his vehicle. The defendant objects to the those portions of the magistrate judge's F&R that deny suppression. The defendant is charged with knowingly and intentionally possessing with intent to distribute 5 grams or more of actual methamphetamine, its salts, isomers, and salts of its isomers.
Pursuant to 28 U.S.C. § 636(b)(1), this court has conducted a de novo review those portions of the F&R to which the defendant objects. United States v. Lothridge, 324 F. 3d 599, 600-01 (8th Cir. 2003). The court has reviewed the record, including the transcript of the suppression hearing on October 4, 2012. Filing No. 28.
The court generally agrees with the magistrate judge's recitation of the facts and supplements the magistrate judge's factual findings only as necessary to this opinion.To restate the facts briefly, on April 17, 2012, Officers Aram Normandin and Josh Downs of the Omaha Police Department ("OPD") were conducting a patrol around businesses that were open 24 hours a day to look for suspicious activity. Filing No. 28 at 3, 9. This patrol was in response to robberies at several convenience stores in the area. Id. At 12:45 a.m., the officers drove into the well-lit parking lot of the Hy-Vee grocery store near 79th and Cass Streets in Omaha. Id. at 4-5. The officers had not received reports of any robberies at the Hy-Vee. Id. at 10. Officer Normandin observed a black sedan backed into a parking stall near the marked Hy-Vee store vehicles in the far southeast corner of the lot. Id. at 4, 24. The officers had no reports of a vehicle similar to the defendant's having been involved in any crime. Id. at 11. Officer Normandin testified that there were approximately ten other cars in the lot. Id. at 11, 24.
The officers stopped, exited their patrol vehicle, and approached the parked vehicle. Id. at 5-6. Officer Normandin testified that the reason he and his partner approached the vehicle was because "somebody was in the vehicle ducked down." Id. at 12. He acknowledged that his initial report of the incident does not mention people "ducked down." Id. at 13.
On approaching the vehicle, Officer Normandin observed the defendant place his hand under his seat, and became concerned for officer safety at that moment. Id. at 6, 15. Both officers then drew their service weapons. Id. Officer Normandin testified he and his partner "pointed [the weapons] at the driver and the other occupants of the vehicle" and told occupants to show the officers their hands. Id. at 15. The other occupants of the car were two young girls who appeared to have been drinking andacted "real nervous." Id. at 8. Officer Nomandin also observed open containers of alcohol around the feet of the females. Id.
He testified the defendant did not take his hands out from under the seat "at first," but complied on the second request. Id. at 15-16. Officer Normandin testified he "opened the door and removed [the defendant] from the car." Id. at 17. Both officers had their weapons pointed at the occupants before they were removed from the vehicle. Id. After the defendant and the passengers were removed from the car, they were all handcuffed. Id.
Within one or two minutes, two other officers in a police cruiser arrived for backup, and one of those officers took the defendant and passengers a considerable distance away from the car and sat them on a curb. Id. at 18, 23. The officers then proceeded to search the vehicle. Id. at 18. Officer Normandin stated he immediately searched the vehicle as soon as he removed the occupants. Id. at 23. The other officers were present at the time he initiated the search. Id. The defendant and the girls were "some distance" from the car when he was searching for the weapon. Id. at 20. He further testified that he had called for backup when he and his partner first approached the vehicle, before observing any gesture under the seat. Id.
Officer Normandin testified the purpose of the search was "officer safety." Id. He stated that once he "pulled all the occupants out of the vehicle, [his] concern at that point was that we had a weapon under that seat." Id. at 6. When he looked under the seat of the car, he saw a couple of baggies of marijuana, a black notebook and a cellphone. Id. at 19. When he reached under the seat, he felt a lockbox. Id. at 20. Hestated it was a three-combination lockbox, but it was unlocked at the time. Id. at 7. He stated the box was roughly ten inches by six inches and was big enough to conceal a handgun. Id. He removed the lockbox from the car and asked the defendant what was in it. Id. at 7, 21. Officer Normandin stated that, at that point, the defendant was not under arrest, but was not free to leave. Id. at 21.
The defendant responded, "there's meth in there" and "I'm a dealer." Id. Once he was told by the defendant that there was methamphetamine in the box, "the box was opened." Id. at 8. He found methamphetamine and another container with a white, powdery substance" in the lockbox. Id. at 9. The officers then advised the defendant of his Miranda rights. Id. at 9. He further stated the "couple baggies of dope" he had seen under the seat "were not important to [him] at the time." Id. at 20. He explained that at the time he found the box he was not concerned about narcotics because "in [his] experience, [he'd] had many dealings with finding drugs in cars in the past couple of years, and [he'd] never found one where a dealer has hidden drugs in that type of a box." Id. He testified he was "more concerned for [the officers'] safety than [he was] looking for drugs." Id.
After he was Mirandized, the defendant stated that he was a drug dealer from Fremont who did deals in Omaha for which there was methamphetamine in the box. Id. at 9. Officer Normandin asked the defendant what the powdery substance was, and the defendant said it was cocaine. Id. at 8. The substances were field-tested and results were positive for methamphetamine and cocaine. Id. at 9. At that time, Officer Normandin formally placed the defendant under arrest. Id. at 9. The defendant wasindicted for possession with intent to distribute 5 grams or more of actual methamphetamine.1 Filing No. 1, Indictment. The indictment also contained a forfeiture allegation with respect to $1,780 in United States currency "seized from the person of SHAWN K. MORGAN on April 17, 2012." Id.
The defendant filed a motion to suppress his statements and the evidence found in his vehicle. He contends: (1) no probable cause existed for his arrest at the time officers approached him and he was handcuffed; and (2) no probable cause or other legal justification exists for the warrantless, nonconsensual vehicle search.
The magistrate judge first determined that the officers' initial contact, approaching the defendant's vehicle, did not implicate any Fourth Amendment interest, but almost immediately became an investigative detention. Filing No. 29, F&R at 4. He found, based on the totality of the circumstances, that the officers had "a reasonable concern for their safety based on the recent robberies in the area and Morgan's conduct." Id. at 6. He concluded that the officers had "a reasonable suspicion to detain Morgan and were entitled to conduct a protective sweep of Morgan's vehicle and subsequently search the box under Morgan's seat, to determine whether Morgan concealed a firearm." Id. at 7.
The magistrate judge further stated:
The holding from [Arizona v.] Gant does not require suppression in this case. The officers did not have probable cause to arrest Morgan prior to the vehicle's search. Officer Normandin initiated his search of the vehicle and the box out of concern for officer safety. The reasonable concern would not dissipate absent a search of the vehicle for weapons, despite Morgan's initial removal from the vehicle, because the circumstances ofthis case justified the officer's reasonable belief that Morgan posed a danger if he were permitted to reenter his vehicle.
Id. at 8-9. Accordingly, the court found no "constitutional infirmities with the officers' initial contact with Morgan, subsequent investigative detention, and search." Id. at 9.
With respect to the statements, the magistrate judge determined that the pre-Miranda statements should be suppressed as violations of the defendant's Fifth Amendment rights because the statements were elicited during a custodial interrogation. Id. at 12. He found, however, that the statements the defendant made after he had been Mirandized should not be suppressed because the defendant "does not argue his post-Miranda statements ... were made involuntarily" and there was no evidence he had "invoked his right to remain silent or that the officers subjected Morgan to prolonged questioning or coerced confessions from him." Id. at 13-14.
The magistrate judge rejected the defendant's argument that the his post-Miranda statements as well as the evidence seized from the vehicle should be suppressed as fruit of the poisonous tree. Id. In finding that the evidence obtained in the search was not subject to suppression, the magistrate judge relied on the principle that "[t]he exclusionary rule as applied under the Fifth Amendment does not require the suppression of physical evidence derived from a voluntary, non-Mirandized statement." Id. (citing United States v. Villalba-Alvarado, 345 F.3d 1007, 1013 (8th Cir. 2...
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